Visa Applications: Common Mistakes and How to Fix Them

What can you do if you make mistakes on your study permit or permanent residence application? The answer is: it depends on the mess. Below are some solutions that may be available.

Reconsideration

When an officer decides against you on an application, you may be able to ask for what is called a reconsideration request. This request must point out the flaws of the decision and must be addressed to the decision-maker. 

Typically, an officer deciding an application commits “errors in fact” (read: they misunderstood or did not consider the evidence you submitted), or “errors in law” (e.g., a misapplication or misinterpretation of the law). Reconsideration requests politely point these out and from there, an officer may revisit a decision and result to a favourable one.

De Novo Applications

“De novo” is a fancy way of saying new. A lot of times, it is be possible to submit a fresh application. In fact, in most negative decisions, the officer indicates in a refusal letter that you are allowed to reapply again if you disagree with the conclusion. 

This is encouraged in when the facts and even the law have changed. Changes in circumstances (for example, employment) may stand as strong grounds for a fresh application. In addition, this avenue is usually cheaper since fighting a decision typically cost a lot of money.

However, this option is not always the best approach. There are times when fresh applications may be time-barred, or in the case of Express Entry, you may be running out of points due to your age and a fresh application does not help.

Statutory Appeals

The Immigration and Refugee Protection Act provides mechanisms for appeal through the Immigration and Refugee Board (IRB). Warning: not all applications may be appealed through the IRB’s appeal divisions. 

Typical appeals at the IRB’s Immigration Appeal Division (IAD) are for refused spousal or common-law sponsorship applications for permanent residence. Appealing through the IAD brings a big advantage: it is treated as a “de novo” application. As such, fresh evidence that was not included in a refused application may be submitted before the board. 

For more information on what can or cannot be appealed at the IRB, consult a lawyer.

Judicial Review 

In theory, any administrative decision, which includes immigration applications, may be reviewed judicially by the Federal Court of Canada. The standards of review depend on the circumstances of the case. 

Without boring you with the legal theory, what is sure is that the JRs rely on the refused application’s record of evidence. As a result, if an application record is defective, then you may be tied down by a bad set of facts and limited options for arguments. That said, JRs are very useful in cases where statutory appeals are not an option, or in cases where the program has lapsed and that limited window of opportunity has gone. 

Citing Humanitarian and Compassionate Grounds 

Strictly speaking, a humanitarian and compassionate grounds application (H&C) is not an appeal. However, it is seen as an informal appeal when it becomes clear that an applicant does not meet the requirements of the law. Depending on the circumstances, an officer must be asked to consider H&C factors or else they will not include it in their adjudication.

It is important to note that H&C applications have a high refusal rate. Be extra careful when contemplating this type of application as it is reserved for the most deserving cases only. This route relies heavily on evidence and therefore requires a lot of help from a lawyer. After meeting the baseline requirements, H&Cs become more art than science. 

Study Permit Applications

There is a proliferation of education and immigration “agents” largely due to the increasing demand for Canadian post-secondary education from around the world. These agents work to place clients in college or university programs in order to take advantage of Canada’s generous programs.

These agents or “ghost consultants” are usually non-licensees in a Canadian law society (i.e., a bar). Even worse, they are not even licensed immigration consultants through the Immigration Consultants of Canada Regulatory Council (ICCRC).

Agents are primarily motivated by sales. In my practice, I have had to help international students in Canada to untangle the mess that ghost consultants have created for their unsuspecting victims. The problems primarily stem from the sales motivation that leads to a client’s choice of college, as well as a choice of program.

Some of these agents receive placement commissions from Canadian colleges. Lawyers are bound by a conflict of interest rule and cannot accept these placement commissions. Lawyers must have their clients’ best interest at heart and the commissions may distract from that obligation. These regulatory bodies mean business and have disciplined lawyers in the past. 

For example, I have seen unscrupulous agents advise couples to both come to Canada as students, not telling them that their spouse or common-law partner may be eligible for a work permit while the primary applicant is studying. The agent’s motivation is that they take double the commission this way. Talk about double-dipping!

In addition, a lot of agents tell their victims that they should opt for a one-year program by default. The reason: a one-year certificate program is easier to sell because they are cheaper than a two-year program. What the victims are not told is that they will only qualify for a one-year post-graduation work permit.

The current COVID-19 pandemic made this problem worse through the lack of employment opportunities. In order for a candidate to gain points for work experience in Canada, the position must be skilled and must last for 12 months. In other words, it is very common to see these students running out of time since their work permits are only valid for 12 months. Absent other options, I have had the displeasure of telling Filipino students in Canada that they have no choice but to go back to the Philippines or start over.

In addition, these agents will only place international students in a program. Once the student is in Canada, the agents usually disappear from the picture. The student is left alone to figure out how to become a permanent resident in Canada. 

This is where the services of an immigration lawyer becomes important. As I tell my clients, it is usually cheaper to spend ahead and have a roadmap or a plan before sinking thousands of dollars into an investment that you don’t completely understand, rather than have to fix these problems or even worse: perform the walk of shame.

Incomplete Documentation and Information

Sending incomplete or wrong documents can doom your application. Wrong documents (Example: NBI Clearance vs. NAPOLCOM Police Certificate) have been adjudicated to be the fault of applicants for not reading Immigration, Refugees and Citizenship Canada’s (IRCC) bottomless pit of instructions.

Another example: Express Entry applicants are required to submit letters of employment. From the Philippines, at least, the norm is to secure what’s called a “certificate of employment” (COE). This document does not meet the requirements set by IRCC. COEs attest to the employment of a person at a given company. Contrast that to a letter of employment contains details such as the job description, positions held, responsibilities, and compensation. 

Another typical issue is the use of the wrong forms. Another: not following the instructions stated in the forms. Immigration professionals are derisively seen as glorified form-fillers. However, one single mistake – a misplaced comma, as lawyers love to put it, can be the kiss of death that ends everything. 

A typical example of this is leaving gaps in your personal and background history. In a PR application, you are required to disclose to IRCC a detailed personal history statement. The form does not allow for gaps and if there is, they will return your application as incomplete.

IRCC follows a one-touch policy for Express Entry. It is very rare to get a second kick in the can once an application is found to be defective due to incomplete documentation.

Failure to provide a full picture of your application details can lead to serious heartbreak. The Regulations used to implement the Immigration and Refugee Protection Act includes a section, R117(9)(d), that requires an applicant to declare all family members as defined by legislation. Non-compliance can lead to a lifetime bar to sponsor family members.

I have seen in many instances where consultants have advised their clients to not declare some members of their family because of a possible inadmissibility factor. In truth, not declaring who you should be declaring is in itself a form of misrepresentation.

Missed Deadlines

It still leaves me scratching my head that while the Philippines has one of the highest social media penetration, whether through Facebook, Twitter, or Instagram, there is a tendency among Filipinos to not check their emails; instead they will be more attentive to their Facebook feeds or Facebook Messenger application’s notifications. 

It should not be a surprise that a lot of people miss their deadlines to respond to procedural fairness letters, or requests for information coming from IRCC. Not responding to important communication can be fatal to an application. It may be that applicants don’t check their emails often enough, or the emails could have been diverted to their junk box. Put bluntly, that is not IRCC’s problem. That responsibility falls on the applicant. 

Conclusion

The lesson here is that along with a proper plan or roadmap, diligence and honesty are important. Immigrating to Canada has become harder over the years and it is expected to get stricter when COVID-19 is beaten. Canada is one of the handful of countries that are managing the crisis well and while it is not perfect, it is doing relatively better than the rest of the world. 

While some immigration programs are easier than the others, it is crucial to receive proper legal advice from an immigration lawyer.